Allahabad High Court
State Of U.P. vs Rahul Ahirwar on 2 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:102810-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 384 of 2022 Appellant :- State of U.P. Respondent :- Rahul Ahirwar Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon’ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Shri Rahul Asthana, learned Additional Government Advocate for the appellant.
2. Present government appeal has been filed against the judgement and order dated 16.03.2022 passed by learned Additional Sessions Judge/Special Judge (POCSO Act), Mahoba in Special Suit No. 115 of 2019 (State of U.P. Vs. Rahul Ahirwar), arising out of Case Crime No. 378 of 2019, under Sections 363, 366, 376 IPC and and Section 4 POCSO Act, P.S. Kotwali Mahoba, District Mahoba.
3. Prosecution story, in brief, is that the complainant namely Smt.Rani has given an application to Inspector Incharge of police station Kotwali Nagar, Mahoba stating therein that on 08.08.2019 at about 12.00 hour (noon) her daughter, aged about 16 years had been enticed away by accused respondent and her daughter has also taken away jewelries with her. Thereafter, complainant has searched her daughter, but she could not be found. One villager, Sunil Yadav had seen Rahul alongwith daughter of complainant at Bajariya Station, on the basis whereof first information report of the present case was lodged against the accused respondent on 11.08.2019 and investigating officer after completing investigation has submitted charge-sheet against the accused respondent.
4. In support of prosecution case, PW-1-Victim, PW-2 Complainant-Smt. Rani, PW-3 Dr. Amrita Singh, PW-4-Investigating Officer- S.I. Baldev Singh, PW-5 Smt. Manisha Gupta, Head Clerk, Rajkiya Balika Inter College, Mahoba were produced and examined before the Court below.
5. While deciding the case the trial court has framed 4 issues, namely, (i) whether the victim was minor on the date of incident i.e. 08.08.2019; (ii) whether there was a delay in lodging the first information report; (iii) whether there is material contradiction in the statements of P.W.1, P.W.2, P.W.3 and P.W.4 or whether the prosecution has failed to proved its case on the basis of the statements of prosecution witnesses no.1 to 5 beyond reasonable doubt; and (iv) whether the informant has falsely implicated the accused persons due to enmity.
6. The learned Trial Court noticed that in the admission register and in the transfer certificate issued by Rajkiya Balika Intermediate College, Mahoba, her date of birth was recorded, attested photocopies whereof were produced. It was found that she had taken admission in Class 9th on 25.07.2017 and in the mid session of Class 11th, as she was regularly absent, her name was struck down from the school record. As per school record her date of birth is 04.08.2003, however, in view of the statement of the informant-PW-2, after discussing the evidence in detail in respect of birth of other children, it was found that the victim was shown to have been in Class 11th and she was stated to be aged about 7 years when she had taken admission in Class 1st, therefore, in view of the statement of P.W.2 the victim would have been around 18 years of age on the date of alleged offence. It was also found that PW-2, the mother had stated that she had married about 36 years back and if this statement is accepted, the victim would have been aged about 29 years, therefore, it was found that in any case the victim was aged around 18 years at the time of incident.
7. The Trial Court further found that there was a delay of about 3 days in lodging the first information report and there was no unreasonable delay. The Trial Court further found that there was material contradictions in the statement of prosecution witnesses. In her statement recorded under sections 161 and 164 Cr.P.C. victim-P.W.1 had categorically stated that she has given such statement, however, the same was given under pressure of accused Rahul and his family member. In her statement recorded under Section 164 Cr.P.C. she has categorically stated that Rahul was known to her for the last two years and she wanted to marry him and on her own sweet will she left with him on 08.08.2019 and they got married at Mahoba and that Rahul had not enticed or taken her away forcibly. It was further found that Smt. Rani-P.W.2-mother of the victim alleged some kind of enmity with the father of accused-Rahulas his father was guilty of harassing her, however, nothing was done by her against father of accused Rahul. It was further found that medical report also did not support the prosecution version as on internal examination hymen was found old torn and there was no sign of use of force on her coupled with the fact that in her statement recorded under section 161 and 164 Cr.P.C. she has not supported the prosecution version. On these grounds it was found that the prosecution has miserably failed to prove his case that any offence as alleged was committed. The Trial Court has also noticed the fact that Munna- father of the victim has never come forward to get his statement recorded or to prosecute the case and therefore, apparently because the informant was having some grudge against father of the accused Rahul she may have falsely implicate him in the present case, therefore, accused was granted benefit of doubt.
8. Challenging the impugned judgment, Shri Rahul Asthana, learned AGA for the State submitted that the Trial Court has committed gross error in disbelieving the testimony of witnesses and given undue emphasis on the minor contradiction in the statements of prosecution witnesses. He submits that the prosecution has fully proved his case beyond any reasonable doubt and the judgment is wholly illegal and perverse, therefore, the same requires serious consideration and reversal and the accused person herein is liable to be convicted.
9. We have considered the submissions and have perused the record.
10. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
11. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon’ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that “the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities”
12. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon’ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
“The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ”possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact.”
13. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:
“10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon’ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-
“12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
“…the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses….”
14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
“(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an “order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.”
18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court’s conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
11. Hon’ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.
12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543.”
14. Similar view has been reiterated by Hon’ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
15. On perusal of record, we find that the educational certificates of the victim issued by the Institution is of a short period and it is not known on what basis her date of birth was recorded by the concerned college. Admittedly, the same was not issued from any educational Board. However, on perusal of the statement of the P.W.2-Smt. Rani-mother of the victim her statement is not convincing in respect of her age as well as in respect of the age of the victim. In her statement at one place she has stated that she is aged about 30 years whereas at other place she had stated that she married about 36 years back which is not possible. There might be some typing mistakes in mentioning the years or the age of the informant. However, she had specifically given the age of her children and in case her age is taken to be correct as 30 years it was not possible that she could have given birth to her son (as her age would be of 12 years), who was aged about 18 years at the time of recording of her statement. In case the years of marriage i.e. 36 years is taken to be correct the age of the victim would have been 29 years. We further find that that as per medical report it is proved that the victim was 18 years of age and 2 years of margin has to be given to the accused persons, therefore, we do not find any legal infirmity in the finding given by the Trial Court in respect of majority of the victim. We also find that there was major contradictions in the statement so recorded coupled with the fact that father of the victim was never come forward to get his statement recorded or to prosecute the present case. P.W.-3 who had conducted the medical examination of the victim had stated that she had willingly gone with accused-Rahul at Muskara where she was living with him as husband and wife on her own sweet will and no rape was committed on her. There was no injury on any internal or external part of the body of the victim and hymen was found old healed as such there was no evidence of rape on her.
16. In these background, we do not find any legal infirmity in the order impugned herein. We find that the court below has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per the law discussed above.
17. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 2.7.2025
Nitendra